What You Need to Know About “Search and Seizure” Of Your Privacy in the Digital Age

The Implications of Scotus Riley V. California

Today, more than 90% of American adults carry cell phones (which are really mini-computers) and, by now, most are likely aware that these devices contain a digital record of nearly every aspect of their lives, from the mundane to the intimate. Some may assume this is private, but, the judiciary has helped to preserve our digital privacy, namely the U.S. Supreme Court’s 2014 ruling in Riley v. California that is still working its way into the law and requires a warrant for all cell phone searches after to arrest, absent an emergency like the phone might have a program to wipe out data if it is not obtained NOW.

Generally, police do not need a warrant to search a person they are arresting, a rule intended to protect the safety of the police officers and to prevent the destruction of evidence. They can just do it in case the potentially have a gun. This is commonly referred to as an officer safety pat down (it is a search of the person’s stuff and seizure of the person). However, building on several prior decisions, the Court in Riley refused to simply extend to cell phones the exception to the Fourth Amendment’s protections against unlawful search and seizure that had been developed in the pre-digital era. The unanimous ruling sent a strong message about digital privacy rights and signaled a Court more prepared to engage in the challenges of the digital age. Nearly three years later, the Riley framework has been applied in a variety of contexts.

Following Riley, the District Court for the District of Kansas denied a warrant application for a cell phone search in In re Nextel Cellular Telephone as the application’s proposed search protocol was overly broad. The court held the proposed search methods violated the Fourth Amendment’s particularity requirement in that they allowed the government to engage in general rummaging without naming a specific place on the phone it would search or what it hoped to seize. The government can search, with specific need shown, by obtaining a search warrant signed by a neutral judge. In the 2016 Microsoft Corp. v. U.S. decision, the Second Circuit held that the Stored Communications Act (SCA) did not give the U.S. government authority to use a warrant to access data stored overseas, upholding the SCA’s focus on privacy rather than disclosure.

Another hot-button issue arose in 2016 regarding a dispute between Apple Inc. and the FBI. Following the terrorist attack in San Bernardino, California, the FBI essentially wanted Apple to put a back door in their encryption software to allow government access to the attacker’s phone. Apple declined and the FBI later withdrew their request after finding another way into the phone, leaving the fundamental dispute to assumedly be resolved at a later time.

Looking to the future, the Riley ruling leaves open the question of how it may apply in some other contexts, namely personal computers, cloud computing, and GPS tracking. The ruling could also affect cases involving the government’s use of drones to collect large amounts of digital data. Furthermore, evolving technology is certain to provide courts with a steady diet of legal and factual questions regarding the appropriate scope of Fourth Amendment protections. This the Fourth Amendment that protects you and your family from impermissible police intrusion extended to technologies not there a mere 5 years ago, such as a civilian drone.

In an era marked by revelations of bulk collection of personal date by the NSA, post-9/11 expansion of governmental surveillance, and myriad other threats to our most basic civil liberties, Riley and its ilk bring with them some sense of relief and limits on government versus our personal freedoms. Though, as technologies develop new ways to collect and store previously inaccessible personal information, the contentious debate between privacy and security remains uncertain.

Ciyou & Dixon, P.C. advocates handles criminal matters, and are highly versed in constitutional law matters, including those with Fourth Amendment issues (and others, such as the right to counsel), handling these cases throughout the state. Certain constitutional violations may allow the incriminatory evidence to be suppressed and the case dismissed. Thus, it is prudent to obtain counsel familiar with the constitutional dimensions and practical uses of constitutional law in criminal defense. This blog post is written for general informational purposes and is not intended as specific legal advice nor a solicitation for services. When you have a complex criminal case, state or federal, obtaining counsel familiar with how these and the other myriad of laws may play out in a courtroom in your case can make a significant difference in your case. This is an advertisement.

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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.